Tennessee's law banning Salvia divinorum goes into effect on July 1, 2006. Tennesse's law, which was initially proposed as a nearly identical copy of a law passed by Louisiana in 2005, specifically carves out an exception to this new Class A misdemeanor for the "planting, cultivation, growing, and harvesting" of the plant itself when "strictly for aesthetic, landscaping, or decorative purposes".

The initially proposed version of the Tennessee bill and Louisiana's 2005 anti-hallucinogenic-plant law attempt to dodge the problem of pissing off gardeners everywhere by declaring that the plants are only controlled when they or products made from them are "intended for human consumption". With obvious parallels to the US Federal Analogue Act, these laws use new methods of criminalizing psychoactive plants that sidestep some of the reasons why the general population would object to prohibiting plants.

The actual law passed and signed into law in Tennessee does not require intent for human consumption and eliminates the longer list of plants banned as "hallucinogenic", only specifically naming Salvia divinorum. The Tennessee law changed "intended for human consumption" to "intent to produce... the active chemical ingredient in... Salvia divinorum." There is no indication in the bill history or news stories what lead to this change.

Typos and Uninformed Lawmakers

The first version of the Tennessee bill was obviously a cut-and-paste of the Louisiana law (see law texts below) including the typo "Lagoehilus inebrians [sic]". This plant name should be Lagochilus inebrians (with a c). There are a few other documents on the web that have this same error, but its source appears to be an OCR error or typo on a RE Schultes monograph published online under the UNODC's Bulletin on Narcotics, where the error occurs only once and the correctly spelled name occurs several times.

Unfortunately, this error and the fact that the bill was simply copied from one state's laws to a bill in another state legislature highlight how little legislators actually know about the matters they legislate. One must assume that no one noticed in any of the readings of the bill in Louisiana and then, after a year went by, again when it was introduced as a bill into the house and senate of Tennessee, the typographical error in the name of one of the plants.

Not Completely Banned

Louisiana now has a structure in place to designate plants as "hallucinogenic" and more plants will likely be added to this list over time. It is easy to imagine this list as a different kind of "schedule". The designated 'hallucinogenic plants' are illegal to cultivate, possess, or process into products when they are intended for human consumption.

Tennessee's law is less obviously amenable to adding additional plants, since it is just a single plant that was controlled, but the conceptual structure is in place: growing this one "hallucinogenic" plant with the intent to produce the "active chemical ingredient" is a crime.

Both the Tennessee and Louisiana laws also make it clear that growing or possessing the plants for other purposes is legal: "(d) The provisions of this section shall not apply to the possession, planting, cultivation, growing, or harvesting of a hallucinogenic plant strictly for aesthetic, landscaping, or decorative purposes." The text of this sub-section remains effectively identical between the two states. So not only are the laws specific that they are only criminalizing the plants under certain conditions, but also explicitly carving out that the law does not cover the plants when they are grown for ornamental purposes. The Tennessee law also excludes from this prohibition products "recognized" by the FDA as a "homeopathic drug".

Tennessee's Sloppy Law Making

Interestingly, many of the mentions of the Tennessee law in their online documentation still refer to the passed law as one covering "Hallucinogenic plants", clearly a carry over from the earlier versions including the text of the actual signed law that states the act is to amend the Tennessee code "relative to certain hallucinogenic plants", the catalog of passed laws which gives the law's title as "Hallucinogenic plants", the fiscal review note accompanying the law in the legislative record which appears to only have been conducted for the initial version of the bill [ref], and the law's abstract published on the legislature's website which also mis-states the crime's severity: "Drugs - Creates Class D felony offense of producing or distributing a material intended for human consumption that contains a hallucinogenic plant and the Class E felony of possessing a material intended for human consumption that contains a hallucinogenic plant. - Amends TCA Title 39, Chapter 17, Part 4." ref.
.

Closing Thoughts

In many ways, these laws strike a balance between completely outlawing these plants and no controls whatsoever. Simply growing morning glories for their plentiful flowers should not, under the Louisiana law, be considered a crime. It seems likely that, as other states increasingly ban Salvia divinorum, Tennessee and Louisiana could end up being the states where Salvia divinorum is the least controlled. Other states (Missouri and Delaware as of Jun 2006) have prohibited that member of the mint family completely, no matter what purpose the gardener has in mind. In Tennessee and Louisiana, heirloom gardeners and ethnobotanical gardens can continue to grow these plants without requiring special licenses or running afoul of the law.

It is objectionable that Louisiana passed a criminal criminal with sub-standard review and it is contrafactual to designate entire genera/genuses ("Stropharia spp." for example) as "hallucinogenic" when well-known members of the genus simply can not be considered "hallucinogenic" and some are even edible. But there is the consolation prize that many plant geeks in Tennessee and Louisiana will not have to destroy their carefully collected specimens in order to stay on the more comfortable side of the law.

It will be interesting to see whether other states adopt similarly patterned laws. Let's hope that someone with a passing familiarity with some of the plants reads the list next time.

Chapter No. 700 PUBLIC ACTS, 2006
CHAPTER NO. 700
SENATE BILL NO. 3247
By Burchett, Burks, Curtis S. Person, Jr., McNally, Finney
Substituted for: House Bill No. 2909
By Strader
AN ACT to amend Tennessee Code Annotated, Title 39, Chapter 17, Part 4, relative to certain
hallucinogenic plants.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:
SECTION 1. Tennessee Code Annotated, Title 39, Chapter 17, Part 4, is amended by
adding the following as a new section:
¤ 39-17-452.
(a) It is an offense to knowingly produce, manufacture, distribute, possess or
possess with intent to produce, manufacture, or distribute the active chemical ingredient
in the hallucinogenic plant Salvia divinorum A.
(b) The provisions of this section shall not apply to the possession, planting,
cultivation, growing, or harvesting of such hallucinogenic plant strictly for aesthetic,
landscaping, or decorative purposes.
(c) The provisions of this section shall not apply to any dosage form which is
legally obtainable from a retail establishment without a prescription and is recognized by
the Federal Food and Drug Administration as a homeopathic drug.
(d) A violation of subsection (a) is a Class A misdemeanor.
Section 2. This act shall take effect July 1, 2006, the public welfare requiring it.
PASSED: May 11, 2006
APPROVED this 19th day of May 2006
Signed: John S Wilder, speaker of the senate, Jimmy Naifeh, speaker of the house, Phil Bredsen, governor.

This is the text of the Tennessee law as proposed, later deleted and replaced with the above:

HB2909 01337129
Filed for intro on 02/16/2006
HOUSE BILL 2909
By Strader
AN ACT to amend Tennessee Code Annotated, Title 39,
Chapter 17, Part 4, relative to certain hallucinogenic plants.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:
SECTION 1. Tennessee Code Annotated, Title 39, Chapter 17, Part 4, is amended by
adding the following as a new section:
¤ 39-17-452.
(a) As used in this section:
(1) "Distribute" means to sell, lease, rent, barter, trade, furnish,
supply, or otherwise transfer in exchange for anything of value a material,
compound, mixture, or preparation intended for human consumption
which contains a hallucinogenic plant.
(2) "Hallucinogenic plant" means any part or portion of any of the
following:
(A) Brugmansia arborea.
(B) Amanita muscaria.
(C) Conocybe spp.
(D) Panaeolus spp.
(E) Psilocybe spp.
(F) Stropharia spp.
(G) Vinca rosea.
(H) Ipomoea violacea.
(I) Datura spp.
(J) Pancreatium trianthum.
(K) Kaempferia galanga.
(L) Olmedioperebea sclerophylla.
(M) Mesembryanthemum spp.
(N) Virola spp.
(O) Anadenanthera peregrina.
(P) Anadenanthera colubrina.
(Q) Erythina spp.
(R) Genista canariensis.
(S) Mimosa hostilis.
(T) Rhynchosia spp.
(U) Sophora secundiflora.
(V) Peganum harmala.
(W) Banisteriopsis spp.
(X) Tetrapteris methystica.
(Y) Heimia salicfolia.
(Z) Tabernanthe iboga.
(AA) Prestonia amazonica.
(BB) Lagoehilus inebrians.
(CC) Rivea corymbosa.
(DD) Salvia divinorum.
(EE) Atropa belladonna.
(FF) Hyoscyamus niger.
(GG) Mandragora officinarum.
(HH) Brunfelsia spp.
(II) Methysticodendron amesianum.
(JJ) Latua pubiflora.
(KK) Calea Zacatechichi.
(LL) Physalis subglabrata.
(MM) Solanum carolinense.
(3) "Homeopathic drug" means any drug labeled as being homeopathic
which is listed in the Homeopathic Pharmacopeia of the United States, an
addendum to it, or its supplements. The potencies of homeopathic drugs are
specified in terms of dilution. Homeopathic drug products must contain diluents
commonly used in homeopathic pharmaceutics. Drug products containing
homeopathic ingredients in combination with non-homeopathic active ingredients
are not homeopathic drug products.
(4) "Manufacture" means the production, preparation, propagation,
compounding, or processing of a material, compound, mixture, or preparation
intended for human consumption which contains a hallucinogenic plant either
directly or indirectly by extraction from substances of natural origin, or
independently by means of chemical synthesis, or by a combination of extraction
and chemical synthesis. Manufacturer includes any person who packages,
repackages, or labels any container holding a material, compound, mixture, or
preparation intended for human consumption which contains a hallucinogenic
plant.
(5) "Production" includes the manufacture, planting, cultivation, growing,
or harvesting of a hallucinogenic plant.
(b)
(1) It is an offense to knowingly produce, manufacture, distribute, or
possess with intent to produce, manufacture, or distribute a material, compound,
mixture, or preparation intended for human consumption which contains a
hallucinogenic plant.
(2) It is an offense to knowingly possess a material, compound, mixture,
or preparation intended for human consumption which contains a hallucinogenic
plant.
(c)
(1) A violation of (b)(1) is a Class D felony. Notwithstanding the
provisions of ¤ 40-35-111, a violation of subsection (b)(1) may also be punished
by a fine of not more than twenty thousand dollars ($20,000).
(2) A violation of (b)(2) is a Class E felony. Notwithstanding the
provisions of ¤ 40-35-111, a violation of subsection (b)(2) may also be punished
by a fine of not more than five thousand dollars ($5,000).
(d) The provisions of this section shall not apply to the possession, planting,
cultivation, growing, or harvesting of a hallucinogenic plant strictly for aesthetic,
landscaping, or decorative purposes.
(e) The provisions of this section shall not apply to any dosage form which is
legally obtainable from a retail establishment without a prescription and is recognized by
the Federal Food and Drug Administration as a homeopathic drug.
SECTION 2. This act shall take effect July 1, 2006, the public welfare requiring it.

HLS 05RS-52 ORIGINAL
Regular Session, 2005
HOUSE BILL NO. 20
BY REPRESENTATIVE STRAIN
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
CONTROLLED SUBSTANCES: Prohibits the production, manufacture, and distribution
of hallucinogenic plant products
1 AN ACT
2 To enact R.S. 40:989.1, relative to controlled dangerous substances; to create the crime of
3 the unlawful production, manufacture, distribution, or possession of a material,
4 compound, mixture, or preparation intended for human consumption which contains
5 a hallucinogenic plant; to provide for definitions; to provide for penalties; to provide
6 for exceptions; and to provide for related matters.
7 Be it enacted by the Legislature of Louisiana:
8 Section 1. R.S. 40:989.1 is hereby enacted to read as follows:
9 ¤989.1. Unlawful production, manufacture, distribution, or possession of
10 hallucinogenic plants
11 A.(1) It shall be unlawful for any person knowingly or intentionally to
12 produce, manufacture, distribute, or possess with intent to produce, manufacture, or
13 distribute a material, compound, mixture, or preparation intended for human
14 consumption which contains a hallucinogenic plant.
15 (2) Whoever violates the provisions of this Subsection shall be sentenced to
16 a term of imprisonment with or without hard labor for not less than two years nor
17 more than ten years and may, in addition, be sentenced to pay a fine of not more than
18 twenty thousand dollars.
1 B.(1) It shall be unlawful for any person knowingly or intentionally to
2 possess a material, compound, mixture, or preparation intended for human
3 consumption which contains a hallucinogenic plant.
4 (2) Any person who violates the provisions of this Subsection shall be
5 sentenced to a term of imprisonment with or without hard labor for not more than
6 five years and may, in addition, be sentenced to pay a fine of not more than five
7 thousand dollars.
8 C. For the purposes of this Section:
9 (1) "Distribute" means to sell, lease, rent, barter, trade, furnish, supply, or
10 otherwise transfer in exchange for anything of value a material, compound, mixture,
11 or preparation intended for human consumption which contains a hallucinogenic
12 plant.
13 (2) "Manufacture" means the production, preparation, propagation,
14 compounding, or processing of a material, compound, mixture, or preparation
15 intended for human consumption which contains a hallucinogenic plant either
16 directly or indirectly by extraction from substances of natural origin, or
17 independently by means of chemical synthesis, or by a combination of extraction and
18 chemical synthesis. Manufacturer includes any person who packages, repackages,
19 or labels any container holding a material, compound, mixture, or preparation
20 intended for human consumption which contains a hallucinogenic plant.
21 (3) "Production" includes the manufacture, planting, cultivation, growing,
22 or harvesting of a hallucinogenic plant.
23 (4) "Hallucinogenic plant" means any part or portion of any of the following:
24 (a) Brugmansia arborea.
25 (b) Amanita muscaria.
26 (c) Conocybe spp.
27 (d) Panaeolus spp.
28 (e) Psilocybe spp.
29 (f) Stropharia spp.
1 (g) Vinca rosea.
2 (h) Ipomoea violacea.
3 (i) Datura spp.
4 (j) Pancreatium trianthum.
5 (k) Kaempferia galanga.
6 (l) Olmedioperebea sclerophylla.
7 (m) Mesembryanthemum spp.
8 (n) Virola spp.
9 (o) Anadenanthera peregrina.
10 (p) Anadenanthera colubrina.
11 (q) Erythina spp.
12 (r) Genista canariensis.
13 (s) Mimosa hostilis.
14 (t) Rhynchosia spp.
15 (u) Sophora secundiflora.
16 (v) Peganum harmala.
17 (w) Banisteriopsis spp.
18 (x) Tetrapteris methystica.
19 (y) Heimia salicfolia.
20 (z) Tabernanthe iboga.
21 (aa) Prestonia amazonica.
22 (bb) Ipomoea violacea.
23 (cc) Rivea corymbosa.
24 (dd) Salvia divinorum.
25 (ee) Atropa belladonna.
26 (ff) Hyoscyamus niger.
27 (gg) Mandragora officinarum.
28 (hh) Brunfelsia spp.
29 (ii) Methysticodendron amesianum.
1 (jj) Latua pubiflora.
2 (kk) Calea Zacatechichi.
3 (ll) Physalis subglabrata.
4 (mm) Solanum carolinense.
5 (nn) Lagoehilus inebrians.
6 D. The provisions of this Section shall not apply to the possession, planting,
7 cultivation, growing, or harvesting of a hallucinogenic plant strictly for aesthetic,
8 landscaping, or decorative purposes.
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument.
Strain HB No. 20
Abstract: Creates the crime of unlawful production, manufacture, distribution, or
possesssion of a material, compound, mixture, or preparation intended for human
consumption which contains a hallucinogenic plant.
Present law provides criminal penalties for the unlawful production, manufacture,
distribution, or dispensing of controlled dangerous substances.
Proposed law retains the provisions of present law and creates the crime of unlawful
production, manufacture, distribution, or possesssion of a material, compound, mixture, or
preparation intended for human consumption which contains a hallucinogenic plant.
Proposed law defines "production", "manufacture", and "distribute" and "hallucinogenic
plant".
Proposed law provides penalties for unlawful production, manufacture, distribution, or
possession with intent to manufacture, produce, or distribute a material, compound, mixture,
or preparation intended fo r human consumption which contains a hallucinogenic plant of
imprisonment with or without hard labor for not less than two years nor more than 10 years
and may, in addition, be sentenced to pay a fine of not more than $20,000.
Proposed law provides penalties for unlawful possession of a material, compound, mixture,
or preparation intended for human consumption which contains a hallucinogenic plant of a
term of imprisonment with or without hard labor for not more than five years and may, in
addition, be sentenced to pay a fine of not more than $5,000.
(Adds R.S. 40:989.1)